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Asking the Court to Let You Change Your Mind: Designated Orders September 9 – 13, 2019 (Post Three of Three)

Posted on Nov. 1, 2019

In the previous coverage of the weeks designated orders we looked at how to ask the Court to change its mind via a motion to reconsider (or the very similar motion to vacate or revise). In this final post on the designated orders from the week of September 9, we look at when you can ask the Court to let you change your mind….

Kurdziel Junior, et. al v. C.I.R., Dkt. # 21186-12 (order here)

This order comes in the aftermath of another interesting substantive case, but one where the substantive issues were largely addressed elsewhere in a memorandum opinion and covered by Professor Bryan Camp here.

The opinion determined whether Mr. Kurdziel engaged in an activity for profit and found in the IRS’s favor that Mr. Kurdziel’s WWII plane flying was actually a hobby, thereby disallowing the losses he claimed. But while the opinion determined all of the substantive issues at point, it did not reach a determination on the final deficiency amount, which is something that Court has to do. Instead of doing that all at once, the Court opted (as it often does) to have the parties determine those computations via Rule 155.

Sometimes genuine computational disputes arise at the Rule 155 stage. Sometimes, however, one party tries to relitigate or raise new issues at the computation stage. The Court tends not to allow that, particularly when the issues could and should have been raised earlier. See Keith’s post here. In the above order, the IRS just now realized it made some mistakes that were in the Form 5278 accompanying the Notice of Deficiency (wayyy back in the process… this case was petitioned in 2012). You can get a sense for how much patience Judge Holmes has for the IRS motion to file an amended answer to fix the errors: “now [the IRS] wants to make [changes] — after discovery, after trial, after even the posttrial briefing –[.]”

A first question that one might have is “why doesn’t the IRS have to raise this in a motion for reconsideration? Isn’t the matter over with?” And the answer (or at least part of the answer), is that the IRS wants to raise new issues, not have the Court reconsider the issues it decided. And the IRS has to do this by an answer, and the Court still has jurisdiction to redetermine a deficiency greater than the amount on the Notice, if the matter is raised before the Court enters a final decision.

We are late in the game for the IRS to be bringing up new issues, but we are not too far gone. In this instance, trial has passed and an opinion has been issued, but no final decision has yet been entered. Judge Holmes cites to two cases (Sun v. C.I.R., 880 F.3d 173 (5th Cir. 2018) and Henningsen v. C.I.R., 243 F.2d 954 (4th Cir. 1957)) for the proposition that the IRS could still, then, try for increased deficiencies under Rule 41.

Of course, just because the Court can allow the party to amend its answer doesn’t mean that it will. Or at least, not for all of the changes the IRS wants.

It may then surprise some readers that Judge Holmes, in this case, actually does allow some of the proposed changes to be made. From the outset it should be noted, however, that all of the changes the IRS asks for can be best understood as mathematical and not conceptual: they don’t really involve new legal arguments. Rather, the mathematical changes flow (you guessed it) mathematically from the changes that were properly at issue in the case.

Tax laws and deductions are often interconnected by taxable income or AGI “phase-outs.” A change to one part of the return frequently has an effect on another. If I fail to report $500K in income, the Notice of Deficiency might only assert that I have an additional $500K of taxable income, but a side-effect may be that I lose the Child Tax Credit I claimed because I am now “too rich” for it (usually, in my experience, the Notice of Deficiency also accounts for these mathematical changes).

In this case the increase to petitioner’s taxable income (which the Court determined by disallowing the “hobby loss”) would or should result in a phase-out of the losses he can claim on his rental real estate. Even though that wasn’t put directly at issue in the Notice of Deficiency (or answer), this side-effect apparently was raised in the trial and largely acknowledged by petitioner’s counsel. Judge Holmes has no qualms about allowing those changes to be made now.

But asking for changes that would come as a surprise, even if they are still mostly mathematical changes, is one step too far. Apparently, the IRS also failed to properly add in gross receipts from the flying (hobby) to the taxpayer’s income -as best I can tell, all they did was deny the loss. This would have not only increased taxable income, but have reduced some itemized deductions subject to the 2% floor (at IRC 67 and in effect during the pre “Tax Cuts and Jobs Act” year at issue here). This issue was never raised in trial, or at any other point, until this motion. Judge Holmes has no patience left for finding these late mistakes (for which the IRS offers no excuse other than “we just didn’t notice it”) and denies that portion of the motion. This case has been around since 2012, after all: it is time to move on.

And so shall we.

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